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Re: California: Legal and liability - using my stamp[Subject Prev][Subject Next][Thread Prev][Thread Next]
- To: <seaint(--nospam--at)seaint.org>
- Subject: Re: California: Legal and liability - using my stamp
- From: "Charles Greenlaw" <cgreenlaw(--nospam--at)inreach.com>
- Date: Mon, 7 Jun 2004 21:41:37 -0700
That Rule 411(g)1 is confusing because it was adopted rather recently, after Office of Administrative Law ceased properly enforcing statutory requirements for clarity, consistency, etc., in regulation adoptions. Excuse? budget crisis, and state worker-itis, I suppose. PE Board staff originated 411(g)1, and is linguistically challenged to a detrimental extent. Board legal counsel defends anything staff does. I submitted comment during the 411 (g) rulemaking process; retention of the stamp illustrations was the only useful result.
Go instead to the PE Act at sec 6735, noting the word "subordinate", and see the definition of same in sec 6705. See also the def of "responsible charge" in sec 6703. Board Rules may not enlarge what the Act (statute) says, but may only interpret, implement, and make specific the Act's statutory provisions. Be mindful also that "responsible charge" was originally a crucial definition for experience-based grandfathering of engineers in 1930 when PE registration began, and still is used for crediting experience for SE and GE authority registration in this state. The dual applications of this term, to qualifying experience and to a practice role that mandates certain actions, don't totally overlap.
Board Rule 404.1 was adopted circa 1975 to curb a managerial habit of Div of Highways (now CalTrans) of staffing field offices at road construction sites with non-registered employees who made decisions on their own that were acted on by the contractors, and built into constructed works, before the registered PE "in responsible charge" back at headquarters found out. Thus the meaning of "subordinate" and the purposes of the PE Act were being subverted. That CalTrans practice was to save money on salaries. It was CalTrans employee PE Jim Jurkovich, a PE Board member at the time, who led adoption of 404.1. A lawsuit against the PE Board, seeking cancellation of 404.1, was promptly filed by CCCELS, predecessor of the politically powerful CELSOC (Civil Engineers and Land Surveyors of California), then headed by Ted Fairfield, who much later became president of the PE Board. They complained 404.1 would bankrupt private firms by requiring all the company's work to be done by PE's. I have a copy of the pleadings and Mr Jurkovich's paper explaining 404.1. The lawsuit was dropped before trial, and Fairfield was a strong supporter of 404.1 in the 1990's at the PE Board. Watch out, because a garbled rewrite of 404.1 awaits action by the Board when Gov S. unfreezes rulemaking.
The late Calif state senator Leroy F. Greene, a private practice civil engineer specializing in structural work, who was a legislator for 35 years, explained in my presence the signature and stamp as having two purposes: to authenticate that the work was by a PE, and to identify who that person was.
Perhaps it helps to realize that an employee PE can be both a subordinate and in responsible charge on the same project. The employee makes "responsible charge" engineering decisions that are proposals for the boss's "responsible charge" further consideration and approval before being released for use where the merits count. According to sec 6735, one of them signs to indicate responsibility. When I was a PE employee in the 1970's, the firm partner who checked all my work, directed revisions to it, and who answered to our client, signed. Yet I got credit for responsible charge of SE work to go up for the SE license. Had the boss inflicted changes and then made me sign and stamp, that would have been a problem, in that such changes were his responsible charge work not veto-able by me, hence not mine. Logically, we didn't do that.
That's the best I can do at harmonizing the several Act and Rule provisions applicable to California. Other jurisdictions surely will be different.
I once heard the PE Board's house legal council tell the Board that he knows nothing of engineering practice except for what the PE Act says. The context was whether a PE's expert testimony in litigation was subject to disciplinary action by the Board if found faulty. He said that was a "gray area" (meaning he didn't know.) Nobody on staff or on the Board knew, except a public member who was a construction company attorney, and he didn't want to say, perhaps because the answer generally is no. The answer lies in appellate court decisions concerning the applicability of Civil Code sec 47(b) relating to privileged communications. I added this item to show another example of the tangled web woven by regulatory personnel who have self-serving agendas and intellectual laziness as their default priorities.
Charles O. Greenlaw, SE, Sacramento
----- Original Message -----
From: Dave Adams
Sent: Monday, June 07, 2004 5:01 PM
Subject: California: Legal and liability - using my stamp
O.K., maybe I'm missing something ...
Section 411(g)1 of the Board Rules: "All professional engineering plans, specifications, ... , shall be signed and sealed in accordance with the requirements of the Professional Engineers Act ... and shall be signed and sealed in a manner such that all work can be clearly attributed to the licensee(s) in responsible charge of the work."
Section 404.1 of the Board Rules defines "responsible charge" as follows (I've included excerpts for the sake of brevity): The term "responsible charge" directly relates to the span or degree of control a professional engineer is required to maintain while exercising independent control and direction of professional engineering work and to the engineering decisions which can be made only by a professional engineer. The professional engineer who signs engineering documents must be capable of answering questions asked by equally qualified engineers. These questions would be relevant to the engineering decisions made during the individual's participation in the project and in sufficient detail to leave little question as to the engineer's technical knowledge of the work performed. Additionally, the term "responsible charge" relates to engineering decisions and does not refer to management control in a heirarchy of professional engineers except as each of the individuals in the heirarchy exercises independent engineering judgement and thus responsible charge.
Now, it seems to me that if BOB did the design and made the engineering decisions for a building, then BOB MUST stamp/seal the engineering documents and CANNOT make his boss TOM sign them since TOM DID NOT have responsible charge of the project. For those of you working in California, does that appear to be an obvious interpretation of the Board rules or am I missing something (which is entirely possible)??
Dave K. Adams, S.E.
Lane Engineers, Inc.
- California: Legal and liability - using my stamp
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